Yaist v. United States

Decision Date29 July 1981
Docket NumberNo. 214-77.,214-77.
Citation656 F.2d 616
PartiesClyde R. YAIST v. The UNITED STATES v. OLSON FLORIDA REALTY CO.
CourtU.S. Claims Court

COPYRIGHT MATERIAL OMITTED

James D. Murray, Lakeland, Fla., for plaintiff; Thomas M. Gittings, Jr., Washington, D. C., attorney of record.

John R. Hill, Jr., with whom was Acting Asst. Atty. Gen., Anthony C. Liotta, Washington, D. C., for defendant; Walter J. Postula, Washington, D. C., of counsel.

Paul M. Laurenza, Washington, D. C., for third-party defendant, Olson Florida Realty Co.; William C. Brashares, Washington, D. C., attorney of record.

Before FRIEDMAN, Chief Judge, and DAVIS and SMITH, Judges.

OPINION

DAVIS, Judge:

This just compensation case, tried before former Trial Judge Browne, concerns the title to some property located in the Florida Everglades. The trial judge ruled that the plaintiff's property had been taken and that compensation was owing in an amount to be determined in a separate trial. We agree with that determination but for somewhat different reasons.1

I

Both the United States and the plaintiff, Clyde R. Yaist, claim title to the same property through purchase, and the merits of the case turn on the recordation-notice law of Florida. In 1968, Olson Florida Realty Company (Olson or Olson Realty), the third party defendant, executed to Yaist Agreements for Deed for two tracts of land, amounting to some 50 acres, within the boundaries of the Everglades National Park. In the spring of 1971, as set forth infra, Olson Realty purported to sell, by warranty deed, these same tracts as well as others, in an amount totalling 1186.25 acres, to the United States, through the National Park Service of the Department of the Interior. The Government bought the land pursuant to 1970 Congressional authorizations for the purchase or condemnation of the remaining inholdings (privately owned property) within the Everglades Park boundaries. Pub.L.No.91-428, 84 Stat. 885 (1970) (amending the original act; codified at 16 U.S.C. §§ 410-410r-4 (1976)).

Olson first executed an Agreement for Deed to Yaist, dated May 10, 1968, for 35 acres (tracts 42, 44 and 46), and later executed another, dated July 18, 1968, for 15 acres (tract 35).2 Yaist did not record either of these Agreements in the public records in Monroe County, Florida. By warranty deed of June 10, 1968, Yaist conveyed to South Polk Corporation (South Polk), a Florida corporation, title to approximately 9.2 acres of the 35 acre tract, subject to Yaist's outstanding Agreement with Olson. Later, by a warranty deed of January 29, 1971, Yaist conveyed part of the 15 acre tract to Nauti-Buoy, Inc., (Nauti-Buoy).3 This deed was recorded on February 5, 1971. On March 10, 1971, C. A. Boswell, Jr., a Florida attorney (who was a stockholder of South Polk), apparently acting on Yaist's behalf, filed several papers in the official records of Monroe County. He filed the warranty deed of June 1968 from Yaist to South Polk, the July 18, 1968 Agreement for Deed from Olson to Yaist for the 15 acres, and an affidavit. The affidavit attached copies of all three Agreements for Deed from Olson to Yaist (see supra, text at n.2 and n.2).

Meanwhile, the United States proceeded to purchase and condemn property in the Everglades. It negotiated with Olson Realty for the purchase of Olson's property, including the 50 acres already sold to Yaist. In preparation for closing the transaction with Olson, the Government obtained a title insurance policy, on December 18, 1970, from Louisville Title Insurance Company through its agent, Monroe Land Title Co., for the 1186.25 acres being purchased. As of that date, none of the transactions involving Yaist had been recorded or filed. Closing was delayed for various reasons until April 28, 1971, and the Government recorded its deed from Olson the next day. The United States paid Olson $100.00 per acre for the property. No title search was performed between December 18, 1970 and the April 28, 1971 closing. By April 1971, however, Boswell and others had filed the various papers described above. Neither Olson nor the United States was aware before closing of these filings and recordations (and therefore neither Olson nor the Government had express actual notice). The Government's title company, by indorsement dated May 20, 1971, guaranteed the title as of April 30, 1971, without having seen or referred to the instruments previously recorded or filed after December 1970.

Yaist first had actual notice of the conflicting claims to his property when he received a copy of a letter sent by the Monroe County tax assessor, dated October 28, 1971, calling attention to the conflicting property interests. By letter of June 13, 1972, the National Park Service, in response to a letter from the plaintiff, told him that the Government had taken title to the property and that Yaist should look to Olson Realty for a solution. Yaist continued to make payments on the property as required under the Agreements for Deed with Olson, and to pay the property taxes until 1975. He filed his petition here in April 1977, claiming that the Government's assertion of ownership of his property amounts to a taking for which compensation is due him.

Defendant objects to the trial judge's conclusion favorable to plaintiff on the grounds that (1) we lack jurisdiction because there was no taking under 28 U.S.C. § 1491; (2) the plaintiff lacks a compensable interest in the property, and (3) the Government purchased the property as a bona fide purchaser for value and without notice of plaintiff's claim. We address these points in parts II-V, infra.

II

A. This court has jurisdiction over Fifth Amendment taking cases under 28 U.S.C. § 1491 (1976) (amended Supp. III 1979). E. g., United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946). Defendant claims, however, that no taking has occurred and that this case should properly be heard by the District Court for the Southern District of Florida in an action to quiet title under 28 U.S.C. § 2409a(a) (1976).

The Quiet Title Act, 28 U.S.C. § 2409a(a), does not apply to or affect "actions which may be or could have been brought under" section 1491. Bourgeois v. United States, 212 Ct.Cl. 32, 545 F.2d 727 (1976), which is binding on us, indicates that this suit was properly brought under section 1491 for an alleged constitutional taking. There, the claimant said that she held title to an island until the United States appropriated it. She based her claim on her purchase of lake-shore property that the Government patented to a private citizen in 1866. The defendant alleged that it owned the island at the time of suit and always had, since its 1866 patent for land on shore did not include the island. The issue was therefore which party had title to the island. The court noted that the plaintiff could appropriately try title in a just compensation suit, because the Quiet Title Act specifically excepted actions that could be brought under 28 U.S.C. § 1491. 212 Ct.Cl. at 35-36, n.1, 545 F.2d at 729, n.1, citing Malone v. Bowdoin, 369 U.S. 643, 647, n.8, 82 S.Ct. 980, 983, n.8, 8 L.Ed.2d 168 (1962) and Carlson v. United States, 208 Ct.Cl. 1022, 1023 (1976). Malone, supra, dismissed an ejectment suit against a federal officer (brought on the ground that the Government did not own the land while the claimant did) but observed that a suit in the Court of Claims against the Government for just compensation would have been appropriate, and Carlson, supra, which was decided after enactment of the Quiet Title Act, specifically held that plaintiffs could try title in a suit for just compensation.

In the case now before us, a dispute over title arises because Olson Realty conveyed to Yaist Agreements for Deed for certain lots and to the United States warranty deeds for the same lots. As in Bourgeois, a holding that the United States was the true owner of the property and that Yaist had no valid claim would mean that there had been no taking. But, as in Bourgeois, a cause of action arises for the plaintiff under the Fifth Amendment through his allegation that he, and not the Government, holds the valid title.

It may be that there could be no suit in this court for a taking if the United States expressed no interest in the property. But Bourgeois held it enough to show a taking — if plaintiff prevailed on the merits — that the Government "posted" the island as government land and sent the plaintiff's attorney a letter to the same effect. In the current case, the Government comparably expressed its desire to retain the land by filing its deed with the county records office on April 29, 1971, and by a letter of June 13, 1972, sent by Philip O. Stewart of the Department of the Interior, telling Yaist that "by virtue of the April 28 conveyance the United States is the owner of record of the lands in question." Moreover, defendant's counsel represented to this court at oral argument that the Government wanted and still wants this land, and would pay for it under the condemnation provisions of the Quiet Title Act (28 U.S.C. § 2409a(b)) if this case were brought in district court under that statute.4

The Government invokes Hilkovsky v. United States, 205 Ct.Cl. 460, 504 F.2d 1112 (1974). That court found no taking even though the Government was proceeding very slowly in obtaining plaintiffs' land — consisting of privately owned plots within the proposed boundaries of the Point Reyes National Seashore. Although the Government had filed condemnation suits, it had never claimed title to the claimant's land. The current claim of present ownership, which goes beyond the purpose to acquire property in the future (Hilkovsky) or beyond the impact of any reduction in the marketability of property due to possible future acquisition (see Pitman v. United States, 211 Ct.Cl. 357, 358 (1976)), is what brings the Government's conduct in this case within our jurisdiction.

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